Find out how adultery affects a divorce case, and what must be proven.

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Imagine you’ve just learned that your spouse had an affair.
You didn’t witness it, but your spouse confessed it to a friend. Other friends
told you that your spouse was seen leaving a lover’s house late at night - on
multiple occasions. When confronted, your spouse admits the affair to you as
well.

You decide that you want to end your marriage and pursue a
divorce right away. Based on numerous films and television programs you’ve
seen, you believe that you can use this affair to your advantage in the divorce. Reality,
however, is quite different from what you’ve seen on screen.

This article covers some of the difficulties of trying to
prove an affair in court.

Grounds for Divorce in Virginia

Virginia recognizes both “no-fault” and “fault” divorces. However,
if you want to pursue a no-fault divorce in Virginia, you must meet the
following requirements:

you and your spouse must live separate and apart
for six or 12 months before filing for
divorce (the amount of time depends on whether you have children), and

you must enter into a written agreement
resolving all marital issues (e.g., support
and distribution of marital assets).

You become somewhat disheartened until you learn that
adultery is a “fault” ground for divorce, and it may provide a possible bar to
spousal support.

For more information on these topics, see Va. Code Ann. §§
20-91(1), 20-107.1(B).

In addition, with a fault divorce based on adultery, you can
file immediately. You are elated
because you don’t want to wait six to 12 months to file; you want to end your
marriage now. Plus, you might not have to pay your cheating spouse alimony.

But after you hire an attorney, you find out that proving
adultery is not that easy. In fact, your lawyer tells you that it would be in
your financial interest to separate from your spouse, and seek a no-fault
divorce six or 12 months later. Counsel tells you that proving extramarital sex
is too difficult.

But what about the confession? What about the friend? Your
spouse even confessed. Counsel sits you down, notices the crestfallen look on
your face, and begins to explain Virginia’s laws on proving extramarital
sex.

Proving Adultery in Virginia

Your spouse’s right against
self-incrimination

You are first
informed that in Virginia divorce cases, spouses have the privilege to not
discuss matters relating to extramarital sex, and judges cannot infer any bad
behavior if a spouse chooses to exercise this privilege.

The 5th Amendment of the U.S. Constitution states: “[no
person] shall be compelled in any criminal case to be a witness against
himself.” Through a bit of legal magic, witnesses in both criminal and civil proceedings can exercise this
privilege and therefore avoid discussing incriminating matters. Lefkowitz v.
Cunningham, 431 U.S. 810 (1977).

In most states, using this privilege allows the judge to
make a negative inference against the witness. That is, the judge can infer
that the witness is hiding something if they choose not to talk about it. This,
however, is not the law in Virginia.

Under Virginia Code Ann. § 8.01-223.1, a spouse’s use of the
constitutional protection against self-incrimination cannot be used against him
or her. In other words, when the privilege against self-incrimination is used
in a divorce, the judge is forbidden from inferring or assuming that spouse is
hiding something. So, if your spouse invokes
the privilege, the confession made to you is worthless.

Corroborating confessions

You then ask: “What
about the confession to the friend? Isn’t this enough?” Counsel answers: “No.
Not even close.”

Virginia Code Ann. § 20-99 requires corroboration (confirmation)
of the grounds for divorce. A divorce will not be granted on uncorroborated
testimony of either spouse. In other words, one spouse’s claim that there was
an affair is not enough.

Moreover, even a third party’s testimony that the cheating
spouse admitted the affair after it happened isn’t enough to establish the ground
of adultery for a divorce. If the third-party witnesses’ knowledge of the
affair comes only from the plaintiff’s own admission, it does not constitute
independent corroboration of the event as it happened.

Confusing case law

Exasperated, you
wonder out loud: “Well how can I prove adultery?” Counsel sits you back
down and informs you that “circumstantial evidence” can be used to prove
extramarital sex. But you need a lot of it.

Unfortunately, Virginia’s case law on providing extramarital
sex doesn’t really provide a set of hard and fast rules. For a while, it seemed
almost impossible to prove extramarital sex. See, e.g., Painter v. Painter,
215 Va. 418, 211 S.E.2d 37 (1975) (holding that adultery wasn’t proven despite
evidence of lipstick on husband’s shirts; a discovered love letter; public kissing
and embraces between the husband and his paramour; and the husband’s departure
from the paramour’s darkened house at 1:45 a.m.)

The Supreme Court of Virginia adopted a more common-sense
approach to the subject in the mid 1980’s. In Dooley v. Dooley, husband’s
private investigator testified that two men, on several separate occasions,
left the wife’s darkened apartment after midnight. He further testified that
she kissed one of the departing visitors. The husband also offered evidence
that the wife was dating the husband’s former attorney, and spent the night
with him on at least four occasions, two of which occurred in a hotel room in
Myrtle Beach, South Carolina, while on vacation.

In response, the wife testified she had been separated from
her husband for almost a year and was thus free to date. She denied ever having
sex with another man during the marriage and claimed that she had maintained
separate hotel rooms from the attorney-boyfriend while on vacation. The
attorney and one of her earlier visitors, likewise, never admitted having sex
with the wife. Rather, the attorney claimed to have fallen asleep on her couch
“on occasion or two,” and the prior visitor, her neighbor, claimed to be just a
friend.

The Supreme Court of Virginia held that such circumstantial
evidence was insufficient to prove adultery. The court clarified the scope of Dooley
two years later in Coe v. Coe. In that case, the husband’s private
investigator testified that, on at least two occasions, the wife spent the
night at her alleged paramour’s darkened apartment. Neither the wife, nor a witness
on her behalf, provided any explanation of her activities with the alleged
paramour.

The Supreme Court of Virginia held that such circumstantial
evidence was sufficient to prove
extramarital sex. The Court reasoned that Dooley v. Dooley was
distinguishable on the following grounds:

Dooley involved meetings at the wife’s
home, while Coe involved meetings at the alleged paramour’s apartment

the
wife in Dooley never spent the night with her alleged lovers, but the
wife in Coe did, and

the wife
in Dooley had a credible response to her activities with the paramour,
while the wife in Coe offered no explanation.

Since Coe, the presence or absence of an explanation
for a late-night rendezvous has become an important factor. For example, in Watts
v. Watts, 40 Va. App. 685 (2003), the husband and his lover had no explanation
for a private investigator’s testimony that she spent the night in his darkened
home on two occasions.Instead of providing an explanation, the husband
invoked the privilege against self-incrimination. The Virginia Court of Appeals
found the case indistinguishable from Coe, where no explanation was
offered, and held that the husband’s extramarital sex had been proven by clear
and convincing evidence.

Based on this decision, it is quite obvious that a greater
inference of extramarital sex can be made when there is no explanation offered
for the reasons one spent the night with an alleged paramour.

A reasonable explanation may be enough to avoid a finding of adultery

Finally, in Hughes v. Hughes, 33 Va. App. 141 (2000),
the wife and her paramour lived together and were open about their mutual love
and sexual attraction. Nevertheless, each denied having sex with each other.
Rather, the wife explained that their living arrangement was predicated on her
economic difficulties. Thus, with a reasonable explanation in tow, the Court of
Appeals found the case indistinguishable from Dooley and held that
extramarital sex had not been proven by clear and convincing evidence.

In sum, the modern focus after Coe is on two
paramount factors:

(1)
whether the spouse has spent the night, in
secret, with his or her alleged paramour, and

(2)
whether the spouse has a credible explanation
for his or her secret meetings with the alleged paramour.

If your spouse does
not exercise the privilege against self-incrimination and does provide a
credible explanation for any late night rendezvous, it will be very difficult
to prove extramarital sex. If your spouse does not exercise the privilege
against self-incrimination (or even if your spouse does) and fails to provide a
credible explanation for any late night escapades, extramarital sex will be
easier to prove.

Conclusion

Proving adultery in Virginia is difficult; you can’t just
offer uncorroborated testimony, you will likely need to hire a private
investigator that can document a trail of late night, secret meetings. Even
then, your spouse may be able to explain it all away. This prevents some
spouses from even pursuing a divorce on the ground of adultery, because the
costs of litigation exceed the benefit of owing no spousal support. Unless
you might owe expensive, long-term spousal support, seeking a divorce on this
ground might not be worth the expense.

If you are considering a divorce based on adultery, you
should speak to an experienced family law attorney for advice.